Dagga is decriminalised – but can you be fired for it?

The Constitutional Court has ordered the decriminalisation of dagga for personal use – but that doesn’t mean you can’t be fired for using cannabis.
Policies on inebriation are still in force, and in some jobs a legal requirement, even though they’ll need to be adjusted.

Things will be particularly complicated over the next two years, while changes are made to legislation.
Smoking dagga can still get you fired, under the right circumstances. And staying away cannabis – at least just before you go to work – could still be a legitimate requirement for some jobs.

But things got a whole lot more complicated after the Constitutional Court on Tuesday said the use of dagga is not a criminal act.

And during the two-year period the Concourt gave Parliament to bring legislation in law with the Constitution, things are going to be particularly difficult when it comes to people getting high on the job, experts say.

“This is a curveball,” Richard Malkin, managing director of company wellness provider Workforce Healthcare, told Business Insider South Africa after the Concourt judgment, even if, ultimately, “nothing is really going to change from a workplace perspective.”

Occupational health and safety rules demand that companies keep the workplace safe, and that includes making sure nobody operates dangerous machines while inebriated – whatever the substance of choice.

For jobs involving heavy machinery, Malkin says, policy should require employees to disclose, up front, if they are using tranquillisers, for instance, even if under the direction of a doctor.

“The requirement is that you can’t be under the influence of any mind-altering substance; whether it is legal or illegal doesn’t really come into play.”

Jobs in finance, or customer-facing jobs such as call centre agents advising customers, should also come with policies on inebriation.

But testing for dagga use is not as straight-forward as a breathalyser test for alcohol. The common, cheap, and fast urine test for cannabis actually detects a metabolic product that can linger for days – well after the user is no longer mentally affected.

So what happens if that test shows dagga use, and you tell the boss you smoked dagga days before? Right now, at least, Malkin believes the only thing a company could do is ask for a spectrophotometric test, which takes around two days and costs around R2,000.

In the meantime, the employee will have to be temporarily suspended from sensitive duties, as a precaution.

The result of such a test could be grounds for dismissal, speculate labour specialists who were still studying the Concourt ruling, on the basis of dishonesty. Using dagga may not be a firing offence, but lying about it could be.

First, though, there could be a considerable fight about the whole process.

“Someone may have okayed drug testing by a company in a contract, but now that company can no longer look at THC [the active ingredient in cannabis],” says Quintin van Kerken, of The Clear Option, an organisation that works in the cannabis and addiction-treatment industry.

“It is pointless, because THC now falls under your right to privacy, so they can’t do anything with a THC test.”

Van Kerken believes there will be test cases about cannabis intoxication and medicinal use of cannabis in the workplace – perhaps soon – but until then there will be considerable confusion about the matter.

In the meanwhile, employees and employers both had better look at the exact wording of policies around drugs and inebriation at work, because a blanket reference to “alcohol, illegal drugs, and prescription medication”, such as those now commonly found, don’t strictly apply do dagga anymore. Probably.